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Senate Filibuster

Location: Washington, DC

SENATE FILIBUSTER -- (House of Representatives - May 16, 2005)

The SPEAKER pro tempore (Mr. Dent). Under the Speaker's announced policy of January 4, 2005, the gentleman from New Jersey (Mr. Pallone) is recognized for 60 minutes as the designee of the minority leader.

Mr. PALLONE. Mr. Speaker, I do not intend to use all the time this evening, but I did want to take to the floor this evening on the first day of this week because of my concern of what may be happening in the Senate on the issue of the filibuster.

I know that the word filibuster to many may seem a little obscure. People ask what it is about, why it is significant, but I do want to say that in my home State of New Jersey there have been many manifestations by New Jersey residents of all walks of life about their concern if the Senate Republicans were to go so far as to eliminate the filibuster.

About 2 or 3 weeks ago, at Princeton University in New Jersey, a group of students started their own filibuster to basically point out how important they thought the filibuster was, and they went on for 2 or 3 weeks, or as far as I know they may still be continuing, but all hours of the night, 24 hours a day, 7 days a week having different students and different people, including myself, I went one day on a Saturday with my kids to basically talk about the filibuster. My son read from one of his favorite Goosebumps novels.

The point that so many of these Princeton University students and New Jersey residents were trying to make was that the filibuster is a guarantee of minority rights. They see it, and I see it, and the Democrats here in the House of Representatives see the filibuster as a way of checking the absolute power, the absolute power of the majority, in this case the Republican majority.

And of course it is true that the Republicans are in the majority. They control the majority in the Senate, here in the House, the President is also Republican, but I would feel the same way regardless of which party was in power; that the filibuster is a way to guarantee that the Senate acts on a consensus basis, particularly with judicial nominees.

It was always envisioned by our Founding Fathers that the Senate would be different than the House of Representatives. The House of Representatives, because each of us represents a fairly equal number of constituents, is the representative body of the people. We act through majority rule. However, in the Senate, it was always envisioned there had to be more of a consensus; that there would not be the power of the absolute majority. Because, after all, in the Senate they are not necessarily representative in the same way as the House. So you could have, as we have, two Senators from California, and they represent over 50 million people, or millions of people, as opposed to a smaller State, like Delaware or Wyoming, where the numbers may be 500,000 approximately.

So it was always envisioned the Senate should act more on a consensus basis, and that is one of the reasons why the filibuster is in place, to provide a check on the power of the majority; to make sure that minority rights are represented.
Now, I want to talk a little tonight, a little extended debate, if you will, on this whole issue, and I think it is important, first, to start with what the filibuster is. I am actually referencing a statement from the Filibuster Action Center at the People for an American Way. They say, what is the filibuster? The filibuster is one of our democracy's oldest and most important checks on the power of the majority. It preserves two of our bedrock values: One, protecting the rights of the minority; and, two, promoting compromise. And it works like this. If at least 41 Senators strongly oppose a bill or a judicial nominee, they can vote to continue debate and block a final vote on the issue. A final vote can only be taken if and when the majority wins 60 Senators' votes.

In the context of a Supreme Court battle, the filibuster means that 60 Senate votes may be needed to confirm out of the mainstream judicial nominees rather than a simple majority of 51.

For two centuries, our leaders have supported the tradition of the filibuster in order to promote cooperation and compromise, and because they have recognized the dangers of one-party control and the importance of protecting the rights of the minority.

Now, there is a new word for what the Senate Republicans under Majority Leader Frist are trying to do, and it is called the nuclear option. I think that is their own phrase. Proponents of the nuclear option seek to break Senate rules and eliminate the filibuster on judicial nominations. They basically argue, and their justification is, the false argument, that the Constitution requires an up-or-down vote in the full Senate on every judicial nomination.

This argument is very much refuted by more than 200 years of Senate history, during which literally thousands of judicial and executive branch nominees have been blocked in the Senate by filibusters, delays, and other tactics. Again, the idea being that it is necessary in the Senate, unlike the House, to have more of a consensus, hence the 60 votes.

Now, I would maintain, and I am continuing making reference to this document from the Filibuster Action Center, that the nuclear option proposed by the Senate Republicans is essentially a radical tactic that would prohibit Senators from using filibusters against extremist judicial nominees. Right-wing Senators and leaders are supporting this destructive action because they want to guarantee the Senate confirmation of far-right ideologues to our Federal courts, but especially our Supreme Court.

The nuclear option is actually a series of steps that right-wing Senators would take to eliminate the filibuster. The nuclear attack would likely begin with one party's Senators provoking a filibuster, most likely by trying to force the confirmation vote on an out-of-the-mainstream appeals court nominee. A Senator would then object, claiming that the filibuster could not be used on a judicial nomination. Vice President Cheney or another Senator presiding over the Senate would rule

in the radical right's favor and then that ruling would be appealed. At that point, a simple majority, with Vice President Cheney as the tie-breaking vote, if necessary, would then uphold the ruling and the filibuster would be part of American history.

Now, this nuclear option earns its name essentially for two reasons, Mr. Speaker. First, it breaks the Senate rules in order to eliminate another rule, the filibuster. Under normal Senate procedures it takes 67 Senators, or two-thirds, to end debate on changing a Senate rule. So normally you would have to have 67 Senators, even more than 60, to change a Senate rule; but the nuclear option would violate Senate rules and require only 50 Senators, plus the Vice President's tie breaker.

Secondly, the atmosphere in the Senate after this attack would resemble a nuclear winter. That is one of the reasons why they call it the nuclear option. All bipartisan cooperation would vanish and the Senate's legislative business would grind to a halt, only adding to the price Americans would pay for the right's reckless abuse of power.

I wanted to make three points, again, this is from the People for the American Way from the Filibuster Action Center, three very important points that I think they make.

One is that filibusters are in fact constitutional. The U.S. Constitution gives Senators the vital responsibility and power to confirm or reject the President's nominees to our Federal courts. That is in the Constitution, Article II, section 2. The Constitution also gives Senators the authority to create rules for their own Senate proceedings. That is in the Constitution, Article I, section 5.

For over 200 years, almost since the very founding of this republic, the filibuster tradition has been maintained under this authority and used by Senators of both parties, including the GOP Senate majority leader Bill Frist, in an effort to prevent the confirmation of judicial and other nominees.

The second point. If filibusters reflect the democratic vision of our Founding Fathers, a primary goal of the filibuster is to force greater deliberation and compromise on controversial Senate matters by requiring that they receive 60 votes to proceed. More of consensus. Since it is legitimate to filibuster controversial legislation that future Congresses can revisit, it is even more appropriate to allow filibusters when considering lifetime appointments to powerful positions on the Federal Judiciary.

Remember, these Federal judicial appointments are for life. That is in the Constitution. Our Founding Fathers wanted America's courts to be an independent branch of government, free of partisanship. Because Federal judges serve lifetime terms it is important both parties help determine who is appointed to the Federal bench.

Lastly, on this point, Mr. Speaker, and again I think this is so important, that filibusters are really necessary to prevent one party from having absolute power, which is what the Republican Party wants right now in Washington.

The outgoing Republican chairman of the Committee on the Judiciary, Senator ORRIN HATCH, has himself explained that the filibuster is, and I quote, "one of the few tools that the minority has to protect itself and those the minority represents."

For 200 years, the filibuster has been an essential part of our system of checks and balances and has appropriated cooperation and compromise. I would say consensus. Senators have retained the filibuster rules because they recognize the dangers of one-party control and the importance of protecting the rights of the minority.

I think America works best when no one party has absolute power.

I just wanted to now go, if I could, Mr. Speaker, into this myth that I think Senator Frist and certainly the leadership on the Republican side in the Senate are trying to give out to the American people; that somehow the Constitution requires an up-or-down vote on a judicial nominee.

If you look at the true history of checks and balances and the advise and consent in the Senate, it is often the case that a nominee never has a vote because the nominee is simply too far, in this case, to the right ideologically to achieve a consensus, to achieve the 60 votes. And there is nothing in the Constitution that says there has to be an up-or-down vote on a judicial nominee if that person is not acceptable because they are too extreme, which is essentially what we have in some of these cases.

Again, I am making reference to the People for the American Way report on this and they say: "To justify a truly unparalleled nuclear option parliamentary maneuver to end filibusters of judicial nominations by breaking the Senate's rules, Senate majority leader Bill Frist asserts that Democratic filibusters are unprecedented and that Senators have a constitutional duty to give Presidential nominations an up-or-down vote on the Senate floor. This assertion is squarely refuted by the history of the confirmation process in the Senate."

To the contrary, as the examples that I am going to be giving illustrate, for over 200 years Members of the Senate have used delaying tactics, including the filibuster, to defeat Presidential nominations to both the Federal judiciary and the executive branch. On many occasions, they have been successful.

Furthermore, nuclear option proponents themselves, including Senator Frist, have repeatedly used the filibuster themselves to delay nominations, including judicial nominations, and have been successful in defeating nominations through a filibuster and other delaying tactics, in which case the nomination never came to the floor for an up-or-down vote.

Under the Senate rules, there is a right of unlimited debate on any question that comes before the Senate, including a nomination. It takes 60 votes to invoke cloture, ending unlimited debate and bringing a nomination or other matter to a final vote. It takes two-thirds of the Senators present, as many as 67, to end debate or on a change to the Senate rules.

So the nuclear option is a proposed parliamentary maneuver which requires a simple majority to get around the Senate rules and amend the Senate rules that requires 60 Senators to end a filibuster. Nowhere in the Constitution, in the text of the Constitution, is there a requirement for a simple majority for a vote on nominations or for any vote at all. What the Constitution does expressly say is that the Senate holds the sole power to make its rules, which certainly must include the rules governing debate on the Senate floor. Again, this interpretation is validated by over 216 years of Senate consideration of nominations.

I want to give some examples because I do not want to just talk about this in the abstract. Until 1949 when Senate rule XXII was amended to allow the Senate to invoke cloture on any matter before the Senate, there was no way for the Senate to end extended debate or delaying tactics on a nomination. It simply kept going. In the last 32 years of the 20th century, the Senate leadership was forced to file cloture on at least 34 nominations to end a filibuster on the Senate floor.

Among those 34 were 13 judicial nominations, of which three people were nominated to be justices of the Supreme Court. So 26 of the 34 filibusters, including in these cases Federal judges, approximately three-quarters were led by Republican Senators.

So when they talk about how it is the Democrats are trying to do this, they should keep in mind that in three-quarters of the cases where filibusters were used in the last 30 or 40 years to stop a judicial nomination, it was the Republicans that were using the filibuster.

I will give some examples. Among these, Abe Fortas, nominated in 1968 to be a Chief Justice of the U.S. Supreme Court, was denied a final up-or-down vote by a Republican-led filibuster when the Senate failed to stop on a vote to invoke cloture by 45-43. In that case, while the vote indicates that a majority of the Senate supported a final vote because of primarily Republican obstructionism, a final up-or-down vote did not occur. Senator Howard Baker argued during debate in defense of the filibuster of Justice Fortas by a Senate minority: "On any issue, the majority at any given moment is not always right." Basically invoking the argument about minority rights.

Similarly, the nomination of Henry Foster to be Surgeon General was killed by a successful Republican filibuster in 1995, as was the nomination of Sam Brown to be a U.S. ambassador in 1994. On both of these votes, a clear majority of the Senate supported the nominations. The exact same advice and consent clause in the Constitution applies to both judicial and executive branch nominations.

Mr. Speaker, I just wanted to point in several cases the proponents of the nuclear option are supporting or have supported several of these filibusters. For example, Senator Frist supported a filibuster against U.S. Circuit Court of Appeals nominee Richard Paez in 2000. Senate Republicans, including FRIST, LOTT and MCCONNELL, were so adamant to try to block a final vote on Paez that they forced the Senate to vote an extremely rare motion to postpone the nomination indefinitely after cloture had been invoked.

Some current nuclear option proponents have been among the most frequent Republican filibusterers of nominations. Senators LOTT, HATCH and MCCONNELL all voted against cloture to continue a filibuster on 11 nominations during the first 3 years of the Clinton administration, including on two occasions where filibusters defeated nominees with majority support in the Senate.

Former Senate majority leader TRENT LOTT on at least one occasion even prevented a cloture motion from being filed on a nomination. In 1998, President Clinton named James Hormel to be the U.S. ambassador to Luxembourg. Despite an overwhelming bipartisan vote of approval in committee, 16 to 2, LOTT simply refused to bring the nomination to the floor despite clear evidence that at least 60 Senators would have voted to confirm the nomination.

I could give many more examples, but I am not going to. I am trying to point out the hypocrisy, essentially, in the fact the Senate Republicans, including some who oppose the filibuster, have in the past used it in so many cases, including against judicial nominees.

Mr. Speaker, the gentleman from Michigan (Mr. Stupak) has joined me, and I yield to the gentleman.

Mr. STUPAK. Mr. Speaker, I wanted to just come down here because it is a very important issue. It is often said in this House we sort of rush things through, and if it has 218 votes it passes; but the Senate is designed by our Founding Fathers to be more deliberate, more thoughtful, to take time and reason things out.


To change the filibuster rules, if you will, change it for all of it, but they only want to change it for judicial and Presidential nominees. Why not change it for all legislation?

Mr. PALLONE. Mr. Speaker, I think it is just an excuse. I think they are using the judicial nominees and ultimately we will see it for everything else. There is no reason to make the distinction. I would argue there is a stronger case for judicial nominees because they are lifetime judges, and so it is an even stronger case why there should be a consensus and a filibuster should be used.


Mr. PALLONE. Mr. Speaker, I want to thank my colleague from Michigan and his willingness to come down here tonight. I know we both feel very strongly about this. Sometimes I think it is hard to explain because people's images of the filibuster are somebody standing up on the Senate floor reading the phone book, almost like ridiculing the process. But the bottom line is it is a very important part of our democracy.

As you mentioned and I really did not get into it much tonight but I will mention briefly that we have seen here in the House many abuses of power by the Republican majority. You mentioned some of them, where bills do not even come to committee anymore, or bills in committee do not have a hearing, or they skip the subcommittee mark, or they go to full committee and they do not allow Democrats to offer amendments, or bills come to the House floor with a totally closed rule, so there is no opportunity for amendment, or there is very little time for debate. In fact, one of the reasons that you and I are here tonight doing special orders is because oftentimes we do not get a chance to speak during the day when legislation is being discussed because the rules are very limiting.

We have just seen many examples where the Republican majority has limited in the House of Representatives the ability of the minority to speak or offer amendments or offer changes in policy. We do not want to see the Senate go down that route. Clearly, particularly on judicial nominations, the intent of the framers was that there had to be a consensus and the Senate was going to be a deliberative body that operated more, as I said, on a consensus basis.

I just wanted to say again, I was making reference to this document from the People for the American way where Senator Frist is justifying this nuclear option or this parliamentary maneuver where he would simply have a majority vote on a rule change and that has never been done in the history of the United States Senate. For over 200 years, nearly as long as there has been a Senate, there have been documented examples of presidential nominations rejected by the Senate without even having an up-or-down vote, through delay, inaction, parliamentary tactics, including the filibuster. That history, I think, demonstrates conclusively that from the text of the Constitution there is no requirement for the Senate to vote on a presidential nomination. There is not a requirement that the Senate take any action at all on a nomination, which has often been the case. And the history of the confirmation process in the Senate illustrates another central fact, that Presidents have had the most success with their nominations when they have viewed the entire Senate as a partner in the nominations process, not an adversary. If you listen to Senator Frist, it is as if the Democrats are an adversary. That is not the way it is supposed to be. The better way out of this current stalemate and the best way to preserve our independent judiciary is not the tyranny of the majority in the Senate but a genuine bipartisan cooperation and consultation with Senators on both the Democrat and the Republican side of the aisle.

Mr. Speaker, as I said and my colleague has said, we continue to see abuse of power by the congressional Republicans.

I will give you another example. Earlier this year here in the House, Republican leaders ignored protocol and weakened the House ethics rules without ever talking with Democrats about the proposed rules change. It was the first time the House ethics rules have been changed without both sides, Democrats and Republicans, sitting at the table and writing new rules together. Fortunately, both conservative and liberal newspapers around the country and the American people saw the weakened rules for the Ethics Committee for what they were, just a power grab and an attempt by the Republican leadership to protect one of their own. The Republican leaders were forced to backtrack and reinstate the rules a couple of weeks ago after Democrats refused to allow the Ethics Committee to meet until the rules were reinstated and the pressure from the public became too great.

But it appears that the Senate Republicans learned nothing from that experience in the House with the rules change that the House Republicans tried to make here. Instead, the Senate Republicans seem prepared to overreach this week, as my colleague said, we hear as early as Wednesday, in an attempt to blow up 200 years of tradition in the U.S. Senate. Majority Leader Frist and Senate Republicans are on the cusp of waging an unprecedented political grab, abusing their power in order to force through a few judges who have been unable to earn a bipartisan consensus for their lifetime judicial appointments.

This power grab was initiated by the White House, which manufactured a judicial crisis. I think my colleague from Michigan mentioned that since President Bush has taken office the Senate confirmed 208 of his judicial nominations and turned back only 10, a 95 percent confirmation rate. That is the highest approval rating for any President in modern times, including Reagan, Bush and Clinton. Thanks to these confirmations, President Bush now presides over the lowest court vacancy rate since Ronald Reagan was President.

There is no judicial crisis here, Mr. Speaker. It is manufactured by the Republicans. Despite the fact that Democrats have helped confirm 95 percent of President Bush's judicial nominees, the President is choosing to pick fights and resubmit the names of nominees who have been rejected during his first term. There were 10 nominees that our Democratic colleagues in the Senate opposed because they had serious questions about their independence and fairness.

One wonders, why are the Republicans preparing to throw out all these constitutional checks and balances just for a couple of extreme judges? Some people say it is because of the Supreme Court, that President Bush wants this fight on the filibuster before a Supreme Court justice retires, which is something that could happen anytime. That may be what is behind it, but it is still really not the way to proceed. To say that Supreme Court nominees would only need 51 votes instead of 60, again there would be no consensus on the very important selection of Supreme Court judges.

Again, I think it is just the right wing of the Republican Party that wants to appoint extreme conservatives to the highest court in the land and they simply know they cannot do it if they have to meet the 60-vote threshold. The White House does not want to nominate another David Souter or an Anthony Kennedy or a Sandra Day O'Connor or a Steven Breyer, all of whom were confirmed with nearly unanimous bipartisan support. Instead, it wants to divide the country by picking a right-wing Supreme Court nominee that it knows could not garner bipartisan support.

I just think that again although the motivation may be in terms of the Supreme Court, the bottom line is that we should not be sacrificing this very important safeguard of our democracy, the filibuster, just to appoint some conservative judges that the President wants to nominate.

The last thing I wanted to say, again there is a difference between the House and the Senate. The framers did not want the Senate and the House to be the same. They saw two different bodies. One of the things that would likely happen is if this nuclear option was presented and the filibuster was overturned is the Senate would basically become a second House of Representatives. That is not what the Founding Fathers envisioned when they created two distinct Chambers.

Again, I do not know what is going to happen, but I think we have to speak out and say that this is not just something that myself and my colleague from Michigan feel strongly about. I know and I have even seen polling that suggests that the American people feel very strongly about this. That is one of the reasons why we had this 2 or 3-week filibuster at Princeton University and why some of the Princeton students came down here last week and brought a bus, they called it the "filibus," we were down on the Mall and we spoke to make the point of how important the filibuster is as a safeguard of democracy.

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